[kictanet] Poghisio Flouting The Law in The CCK Tussle-by DMakali

Wed Apr 20 12:12:57 EAT 2011

hey listers,

First, I think the Government circular on appointment of CEO's to
parastatals is quite clear on the process of appointments of CEO’s and it is
evident that the Minister has contravened the regulations.

As far as the statutes go, this is the position:

*Powers of the Board of Directors in appointments*

* *

The powers and responsibilities of the Board of Directors are clearly
outlined in Section 4(2) of the  *State Corporations (Performance
Contracting ) Regulations 2004,*subject of course to the State Corporations
Act and any other statutes and they include inter alia*, the power to: **

“…(b) recruit staff including the chief executive of the state corporation;

(c) develop and negotiate with the parent Ministry performance targets for
the state corporation for a specified financial year;

(f) enter into and implement performance contracts with the chief executive
of the state corporation;

(h) perform any other duties that may be deemed necessary or expedient for
the implementation of the performance contracts.”*

Although there is no specific power granted to the Board to dismiss/not
renew contracts of CEO’s either in the State Corporations Act or in the
Kenya Information and Communications Act, there is a rule of interpretation
of statutes that says that grant of a specific power necessarily implies
that it also has the power to do the converse and therefore it is implied
that the power of the Board to hire includes the power to fire.’

The general principle is that it is not within the power of the Minister to
reinstate, recruit of dismiss the CEO.

*Personal liability of Board members *

Section 15 of the Kenya Information and Communications Act is clear that
Board members and officers of the commission shall not be subject to
personal liability for acts done in good faith for the purpose of executing
their functions, powers or duties of the CCK under the Act.

So there is no reason for the Minister to report any of the Board Members to
KACC for alleged improper conduct when they were acting in good faith and in
the exercise of their functions for the CCK under the Act. In any case the
procedure to remove or discipline a Board Member is clearly outlined
in *Section
11 of the *State* Corporations (Performance Contracting) Regulations 2004 :*

*“Subject to the provisions of any **other
Act*<http://www.kenyalaw.org/kenyalaw/klr_app/view_cap.php?CapID=3>
*, the Minister may, in consultation with the committee, and based on
results of evaluation, remove a Director of a state corporation whose
performance is unsatisfactory.”*

 And more specifically *at Section 2(b)   of the First Schedule to the Kenya
Information and Communications Act :*

* *

*“2. A member other than the chairman or an ex-officio member may – *

* *

* (b) be removed from office by the Minister if the member - *

*(i) has been absent from three consecutive meetings of the Board without
the
permission from chairman; or*

*(ii) is adjudged bankrupt or enters into a composition scheme or
arrangement
with his creditors; or*

*(iii) is convicted of an offence involving dishonesty or fraud; or*

*(iv) is convicted of a criminal offence and sentenced to imprisonment for a
term exceeding six months or to a fine exceeding ten thousand shillings; or*

*(v) is incapacitated by prolonged physical or mental illness; or*

*(vi) fails to comply with the provisions of this Act relating to
disclosure;*

*(vii) is engaged in a communications organization which operates on
telecommunication system or provides telecommunication services or is
engaged in the manufacture or distribution of telecommunication equipment in
Kenya as an owner, shareholder, partner or otherwise, whether directly or
indirectly.”*

Also, the idea of approcahing the Court of Appeal sitting as the Supreme
Court to seek an advisory opinion is a waste of time.An advisory opinion is
just that ..it has no binding effect plus.the CIC is already before the
court seeking an advisory opinion on the appointment of persons to state
offices,so its better to wait for the outcome of that.

everyone is right that as the appointment has not been gazetted,it cannot be
said to have been done,but the minister will probably back-date the
appointment in the gazette notice as he did with the members of the
Communications Appeals Tribunal.

Once Gazettment is done,the best way to approach the court is by way of
judicial review.

On Wed, Apr 20, 2011 at 8:00 AM, Walubengo J <jwalu at yahoo.com> wrote:

>  It seems this saga refuses to die...
> ~~~
> The Star
> Tuesday, 19 April 2011 00:04  BY DAVID MAKALI
>
> A little over a week ago, Information and Communications minister Samuel
> Poghisio called a press conference to announce that he had revoked the
> suspension of the director general of the Communications Commission of
> Kenya.“For the avoidance of doubt, I wish to state that Charles Njoroge
> remains in office and that as the appointing authority I will proceed to
> renew his contract in line with the law,” he stated.
>
>
> The minister’s intervention may have seemed timely and proper. Given the
> infighting that had become the order of the day at the CCK between the board
> of directors (or some) and the director-general, some form of external
> intervention was necessary to establish order.
>
> However, questions still linger over what exactly the minister did, if it
> was legal, and if it is in the interest of the general telecommunications
> sector and the public in general. At the time of this writing, his
> re-appointment or otherwise had not been gazetted.
>
> more @
> *http://tinyurl.com/3cddk4h*
>
> walu.
>
> _______________________________________________
> kictanet mailing list
> kictanet at lists.kictanet.or.ke
> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>
> Unsubscribe or change your options at
> http://lists.kictanet.or.ke/mailman/options/kictanet/kaykerubo%40gmail.com
>
> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for
> people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20110420/8a5b0d46/attachment.htm>